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[2020] QSC 60
Supreme Court of Queensland
2020-04-03
Burns J
Original judgment source is linked above.
CRIMINAL LAW - GENERAL MATTERS - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - VERDICT - where the accused made application for a judge alone trial pursuant to s 614 of the Criminal Code 1899 (Qld) - where no jury trial orders were made pursuant to s 615 of the Criminal Code 1899 (Qld) - where the accused was tried by a judge sitting without jury
CRIMINAL LAW - PARTICULAR OFFENCES -OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - VERDICT - where the accused was charged on indictment with manslaughter - where the accused pleaded not guilty - where the deceased died of traumatic asphyxiation after a motor vehicle driven by the accused drove over him as he lay on the ground - where the Crown alleged that the accused knew that the deceased was on the ground - where the Crown alleged that the accused deliberately drove her motor vehicle over the deceased - whether the accused intentionally drove her vehicle over the deceased - whether the accused caused the death of the deceased - whether the accused is guilty of manslaughter
CRIMINAL LAW - PARTICULAR OFFENCES - DANGEROUS DRIVING - DANGEROUS OPERATION OF A VEHICLE CAUSING DEATH WHILST INTOXICATED - VERDICT - ALTERNATIVE VERDICTS - where the accused was charged on indictment in the alternative with dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance - where the accused pleaded not guilty - where the deceased died of traumatic asphyxiation after a motor vehicle driven by the accused drove over him as he lay on the ground - where the Crown alleged that the accused operated the motor vehicle dangerously - where the Crown alleged that the accused was grossly intoxicated with alcohol - where the Crown alleged that the accused failed to keep a proper lookout - where the Crown alleged that the accused failed to keep the motor vehicle on an established driveway - where the Crown alleged that the accused was aware of at least the possibility of the presence of the deceased - whether the accused operated the motor vehicle dangerously - whether the dangerous operation of the motor vehicle by the accused caused the death of the deceased - whether the accused is guilty of dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance
CRIMINAL LAW - EVIDENCE - MATTERS RELATIING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER - where the accused was charged on indictment with manslaughter - where the accused pleaded not guilty - where the deceased died of traumatic asphyxiation after a motor vehicle driven by the accused drove over him as he lay on the ground - where the Crown alleged that the accused knew that the deceased was on the ground - where the Crown alleged that the accused deliberately drove her motor vehicle over the deceased - where at the close of the Crown case a no case submission was made on behalf of the accused with respect to the count of manslaughter - whether the evidence was sufficient to support the drawing of a reasonable inference to the effect that the accused knew that the deceased was on the ground - whether the evidence was sufficient to support the drawing of a reasonable inference to the effect that the accused intentionally drove her motor vehicle over the deceased
Criminal Code 1899 (Qld), s 23, s 25, s 31, s 328A, s 615, s 615B, s 615C
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, cited
May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654, followed
Questions of law reserved on acquittal (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1, followed
R v Ellem (No 1) [1995] 2 Qd R 542, cited
R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, cited
R v Masters [1987] 2 Qd R 272, cited
R v PP [2002] VSC 523; (2002) 135 A Crim R 575, cited
R v QVA [2017] QSC 281, cited
R v Smith [2005] QCA 1; [2005] 2 Qd R 69, cited
Director of Public Prosecutions (Qld) for the Crown
[1] By the indictment before the court, Elisabeth Mary Coman is charged with the manslaughter of her fiancé, Clive Douglas Crandley, on 28 July 2018 on a small acreage block at Wamuran. In the alternative, she is charged with dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. To each count she pleaded not guilty.
[2] The trial commenced on 16 March 2020 without a jury after orders to that effect were made pursuant to s 615 of the Criminal Code 1899 (Qld). The Crown case closed on 18 March and, after an unsuccessful no case application, Ms Coman elected to give evidence in her own defence. Her evidence concluded on 19 March and the addresses of counsel were heard on the afternoon of the following day. As the court required time to consider the evidence as well as the arguments of counsel, Ms Coman's bail was continued until verdict.
[3] Section 615B(1) of the Code provides that, in a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If a statute or the common law requires information, a warning or an instruction to be given to the jury in particular circumstances, the judge in a trial by a judge sitting alone must take that requirement into account if those circumstances arise in the course of the trial: s 615B(2)(a). The judge may make any findings or give any verdict that a jury could have made or given if the trial had been before a jury, and any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury: s 615C(1). The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact on which he or she has relied: s 615C(3).
[4] These are my reasons for the verdict to which I have arrived, along with the principles that I have applied.
[5] An accused in a criminal trial is presumed to be innocent. Importantly, before a verdict of guilty may be returned, I must be satisfied of the guilt of Ms Coman and, more than that, satisfied of her guilt beyond reasonable doubt. The Crown has the burden of proving Ms Coman's guilt; there was no onus on her to prove anything.
[6] The following witnesses were called to give evidence in the Crown case and each was cross-examined:
- (a) Senior Constable Tetro and Sergeant Fewson, scenes of crime officers;
- (b) Senior Constable Turner and Constable Oakley, first responders;
- (c) Sergeant Dux, of the Caboolture CIB;
- (d) Senior Constable Beavis, of the Burpengary Forensic Crash Unit;
- (e) Sergeant Fernandez, a fingerprints expert;
- (f) Ms Rose, a communications operator with the Police Communications Centre;
- (g) Mrs Crandley, the former wife of Mr Crandley;
- (h) Ms Legge, a former partner of Mr Crandley;
- (i) Mr Sherlock, a neighbour;
- (j) Dr Holme, a forensic physician attached to Queensland Health; and
- (k) Dr Ma, a specialist pathologist employed by Queensland Health Forensic and Scientific Services.
[7] A number of exhibits were also received in evidence. These included an Interactive Forensic Imaging System presentation, photographs of the scene taken on the evening of the incident as well as on the following morning, photographs of Ms Coman taken on the evening of the incident, dashcam video footage from the police vehicle driven by the first responders, a certificate of breath analysis, a diagram of the scene prepared by the Burpengary Forensic Crash Unit, photographs and diagrams referable to the examination of the body of Mr Crandley and an audio recording of the 000 emergency call made by Ms Coman shortly after the incident.
[8] There were also a number of formal admissions made with respect to the mechanical condition of the car driven by Ms Coman as well as some aspects of the fingerprint evidence.
[9] The defence case was comprised of the evidence of Ms Coman and one exhibit, being a photograph of Ms Coman and Mr Crandley taken about a year before he died.
[10] I believed the essential features of the account which Ms Coman gave in evidence. Although she generally downplayed the extent of her drinking and there were undoubtedly gaps in her memory regarding a number of peripheral matters, some of which she may have attempted to fill with a degree of reconstruction, I had no reason to doubt what she said about the essential features. To the contrary, there was good reason to accept what Ms Coman said because (as I discuss below) her account was generally in line with, and thereby supported by, the other evidence in the case. She also made a number of concessions when being cross-examined that were potentially adverse to her, but she made them nonetheless. Otherwise, it has to be said that there were certainly oddities among the things Ms Coman initially said in the 000 call immediately following the incident. For example, Ms Coman at first described what occurred as a "farming accident" and said that they had been "feeding the horses", but she then proceeded to give a snapshot that was largely consistent with the evidence which she gave at the trial. That is not to say that she gave a wholly coherent account to the operator - Ms Coman was grossly intoxicated and no doubt in a state of shock at the time of that call - but, to her mind, there had been an accident on what she referred to as a farm and she had not long before the incident come up from feeding their horses.
[11] Mr Crandley died by traumatic asphyxia caused after a car drove over his body and part of it came to rest over his chest. It was uncontroversial that Ms Coman was the driver of the car when Mr Crandley was pinned underneath it or that this happened on a relatively flat, grassed area adjacent to a gravel driveway that led through a gate to their house in Wamuran. Nor for that matter was it in issue that an alcohol-fuelled argument between the two that took place inside their house precipitated the whole event. Ms Coman felt threatened and decided to remove herself from what she perceived to be a position of real danger by slipping away from the house, walking to her car and attempting to drive off to a place of safety.
[12] The Crown case on count 1 - manslaughter - was precise. It was limited to the allegation that Ms Coman caused Mr Crandley's death by deliberately driving her car over him, although not with any intention to cause death or grievous bodily harm. The Crown alleged that Ms Coman knew that Mr Crandley was in the grassed area "between herself and the ... gate" and "intentionally drove the vehicle onto" him. Although it was put in slightly different ways, the Crown maintained that Mr Crandley must have been standing on the grassed area between Ms Coman and the gate and, as such, he constituted an obstacle to be overcome by Ms Coman to make good her escape.
[13] It is therefore important to a proper understanding of these reasons to keep in mind that the Crown case on manslaughter was not put on any other basis. For instance, it was not suggested that Ms Coman could be adjudged guilty on the basis of criminal negligence. It follows that unless I am satisfied beyond reasonable doubt that Ms Coman deliberately drove onto Mr Crandley, I must acquit her with respect to this count.
[14] The Crown case on count 2 - dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance - was that Ms Coman drove her car on the grassed area dangerously in that she: (1) was intoxicated by alcohol; (2) failed to "maintain a proper lookout"; (3) failed to keep the car on the driveway; and/or (4) was "aware of at least the possibility of the presence of a pedestrian", namely, Mr Crandley. The Crown alleged, as an essential ingredient of this alternative offence, that Ms Coman's driving was a substantial or significant cause of Mr Crandley's death.
[15] Before setting out my findings of fact, it is necessary to say something about what became a significant body of evidence at the trial regarding Mr Crandley's relationship with his former wife, Mrs Crandley, his subsequent partner, Ms Legge, and, lastly, Ms Coman. Much of that was evidence of Mr Crandley's disposition, and it was received not so much as to prove the likelihood that he had behaved in the way Ms Coman recounted (see R v Ellem (No 1) [1995] 2 Qd R 542, 546 - 547; R v PP [2002] VSC 523; (2002) 135 A Crim R 575, [6]) but because it went to her state of mind and, in particular, her belief that the course she took was necessary to remove herself from danger (see R v Masters [1987] 2 Qd R 272; R v QVA [2017] QSC 281, [19] - [21]). It is, however, unnecessary to dwell on this evidence to any great degree. That is principally because the Crown did not dispute that Ms Coman and Mr Crandley had an argument which preceded her decision to leave the house or submit that such a response was unwarranted. It is also because most of that testimony would only fall to be considered in the context of the Code defences that were raised on the evidence but, for reasons I will come to, the Crown failed to make out the fundamental elements of either of the offences charged on the indictment and, accordingly, there was no need to move beyond those elements to a consideration of any of the defences.
[16] That said, these are the facts as I find them to be.
[17] Wamuran is a semi-rural township situated about half an hour's drive west of Caboolture. In March 2018, Ms Coman and Mr Crandley purchased a relatively small holding, a little under five hectares in area, along Newlands Road. A long, private driveway, a few hundred metres in length, led to a lowset house and a number of outbuildings including a three-bay shed situated about 20 metres from the western end of the house. In the immediate approach to the house, the driveway was composed of gravel and, not far from the shed, it was transected by a drain over which there was a steel grate. The shed functioned in part as a garage for Ms Coman and Mr Crandley to park their cars. There were a number of fenced paddocks and stables for their horses. The stables were on the far side of one of the paddocks and some distance from the house.
"I was heading along towards that driveway and I was just about to turn to go down that first gate, and then all of a sudden from my right, in a flash of a second, I could see something coming, rushing towards me - in front of me. It was then I realised it was Clive. Right in front of me - in a fraction of a second, he slipped backwards and then before I even had time to brake, I felt two bumps, and then I immediately stopped the car. ... I was in disbelief that ... he could have heard me and run out ... in front of my car and then fall backwards."
[28] Ms Coman went on to explain that she did not know that Mr Crandley was outside the house. She felt that it was "safe to drive and he wouldn't realise [she] was gone". Mr Crandley came from the side (and the direction of the house) and towards the front of Ms Coman's car. He was wearing a pair of leather boots. She only saw him when he appeared in the beam of her headlights.
[29] Ms Coman's car travelled diagonally across Mr Crandley's body, first over his right leg, and then his abdomen and chest before coming to rest in a position where the driver's side front wheel was over his left shoulder and adjacent to his head. Part of the chassis was lodged over Mr Crandley's chest and this is what caused asphyxiation leading to death.
[30] After trying to assist Mr Crandley, Ms Coman ran to the house and looked for her mobile telephone but, in her intoxicated state, could not find it. Instead, she managed to find Mr Crandley's mobile telephone on the kitchen bench and used it to make the 000 call. That call was received by Ms Rose at the Police Communications Centre at 7.11 pm. Leaving to one side the oddities to which I earlier referred, she told Ms Rose that Mr Crandley had been "run over" and that she was the driver. She asked Ms Rose to send the police and an ambulance. She thought that Mr Crandley was dead. He was not breathing. She volunteered that they had "an altercation", she "drove out" and that he "like stood in front of the car". Asked whether she had "deliberately hit him", Ms Coman immediately replied, "No. No. I ... chose to leave". She added, "I left. He pushed himself in front of me and he was too quick so I ... didn't have enough time to stop. And so he was caught under the car". When Ms Coman was asked when this happened, she said, "four to five minutes it would have been because ... I couldn't find [the] phones". When Ms Rose asked whether Ms Coman was "driving out of the driveway and he's run in front ... of you", Ms Coman said, "Yeah", before adding, "And I ran over him. It was very quick". Ms Rose asked, "And you didn't see him coming towards you?". Ms Coman replied, "No".
[31] The first police responders at the scene arrived at about 7.30 pm. Ms Coman was standing beside the car still talking to Ms Rose on Mr Crandley's telephone. The headlights were on but the engine was off. Mr Crandley was pinned under the car on the front driver's side. He was lying flat on the ground and his body was face up. He had no pulse. Although the car was fitted with air bags, they had not deployed.
[42] After the close of the Crown case, Mr Copley QC submitted that there was no case to answer on count 1. He argued that, as the evidence then stood, there was nothing on which it could be concluded that Ms Coman knew that Mr Crandley was on the grassed area between her and the gate or that she intentionally drove onto him. In particular, he submitted that there was no evidence from which an inference of knowledge or intention in either of these respects could be inferred, and that without support in the evidence for the drawing of a reasonable inference as to both, the Crown case on manslaughter could not succeed.
[43] In R v Goldsworthy, Goldsworthy & Hill [2016] QSC 220, I discussed the principles to be applied in the determination of a no case submission where the Crown case substantially rested on the drawing of inferences. After noting that the question of law to be decided is "whether on the evidence as it stands [the accused] could lawfully be convicted" (May v O'Sullivan [1995] HCA 38; (1955) 92 CLR 654, 658) and that if "there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision" (Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214), I said:
"Where the Crown case rests either wholly or partly on circumstantial evidence, a no case submission is to be decided on the basis of such inferences that are reasonably open in support of the Crown case. It is not the function of a trial judge to choose between inferences which are reasonably open to the jury. Just as the determination of the facts is a matter for the jury, so too is the drawing of inferences based on those facts. The judge must therefore proceed on the basis that "the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution" (Questions of law reserved on acquittal (No 2 of 1993) [1993] SASC 4152; (1993) 61 SASR 1, 5)": at [10] (References omitted)
[44] By the close of the Crown case, the evidence was in my view sufficient to support an inference that Ms Coman knew that Mr Crandley was on the grassed area between her and the gate and that she intentionally drove over him. This was principally because the physical evidence at the scene established that there had been an unexplained deviation of her car from the driveway to the position where Mr Crandley's body was found pinned under the vehicle and there was no evidence that the car had braked heavily. Such an inference was reasonably open on the evidence, although it was hardly a compelling one.
[45] I therefore dismissed the no case submission but that of course did not mean that I could, or would, be satisfied about the correctness of that inference. After all, acceptance of it would mean that I was satisfied beyond reasonable doubt that Ms Coman saw Mr Crandley either go to ground or already on the ground and that, rather than stopping or driving around him (and in that way make good her escape), she chose to drive over him. That was an unlikely scenario but it was not excluded as a possibility on the evidence constituting the Crown case.
[46] A number of defences under the Code were raised on the evidence but, for reasons that will shortly become plain, there is no need to examine their potential operation in depth.
[47] It is sufficient instead to record which defences were raised: unforeseen consequence (s 23(1)(b)) and one of extraordinary emergency (s 25) or compulsion (s 31(1)(c) and/or s 31(1)(d)). The latter two defences could not stand together because of the opening words of s 25 which exclude its operation where the provisions of the Code relating to compulsion apply (see R v Smith [2005] QCA 1; [2005] 2 Qd R 69).
[48] Manslaughter is the unlawful killing of a person in circumstances not amounting to murder. Before Ms Coman can be found guilty of count 1, the Crown must prove each of the following three elements of that offence beyond reasonable doubt: (1) that Mr Crandley is dead; (2) that Ms Coman killed Mr Crandley, that is, caused his death; and (3) that the killing was unlawful.
[49] As to (2), any person who causes the death of another, directly or indirectly and by any means whatever, is deemed to have killed that other person. It is enough that the accused person did an act that was a substantial or significant cause of death or which substantially contributed to it. As to (3), "unlawful" means not authorised, justified or excused by law, that is to say, by any available defences under the Code.
[50] It is not an element of the offence of manslaughter that the accused intended to kill the victim or to do him grievous bodily harm. However, as I have already made plain, the Crown case on this count was that Ms Coman knew that Mr Crandley was on the grassed area between her and the gate and that, armed with that knowledge, she deliberately drove over him. Another way of putting that proposition would be to say that the Crown alleged that Ms Coman intended to do the act that resulted in Mr Crandley's death, although not intending by that act to kill Mr Crandley or to cause him grievous bodily harm. Therefore, before Ms Coman can be found guilty of manslaughter - and in addition to proof of the three essential ingredients of that offence - I must be satisfied beyond reasonable doubt that she intended to drive her vehicle over Mr Crandley.
[51] Intention may be inferred or deduced from the circumstances in which Mr Crandley's death eventuated, and from the conduct of Ms Coman before, at the time of, or after she did the act which resulted in death. In this regard, whatever Ms Coman said about her intention may be looked at for the purpose of deciding what that intention was at the relevant time.
[52] It follows from my acceptance of Ms Coman's account that the Crown cannot succeed on this count. The evidence I earlier reviewed (at [37] - [41]) establishes that Mr Crandley was on the ground lying face up when Ms Coman's car ran over him. As Ms Coman was turning back towards the driveway, Mr Crandley suddenly appeared on the driver's side and to the front of her car. It is likely that he ran to this position and was attempting to rapidly change direction in order to turn to face Ms Coman when he slipped on the dew-laden grass and fell backwards onto the ground. Ms Coman had little if any time to react by braking or swerving before her car travelled over Mr Crandley's body, although there is some evidence of what was probably an instinctive reaction to swerve to the left at the same time as her brakes were applied. She did not deliberately drive over Mr Crandley's body and, without more, that finding is enough to secure an acquittal on count 1.
[56] It is therefore necessary to consider count 2, being the alternative offence charged on the indictment: dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. For the reasons that follow, Ms Coman must also be acquitted with respect to this count.
[57] It is useful to set out the precise wording of count 2:
"That on the twenty-eighth day of July 2018 at Wamuran in the State of Queensland, ELISABETH MARY COMAN dangerously operated a vehicle in a yard at ... Newlands Rd Wamuran and caused the death of CLIVE DOUGLAS CRANDLEY.
And at the time of committing the offence, ELISABETH MARY COMAN was adversely affected by an intoxicating substance."
[58] Before Ms Coman can be found guilty of dangerously operating a vehicle causing death while adversely affected by an intoxicating substance, the Crown must prove each of the following five elements of that offence beyond reasonable doubt: (1) that Ms Coman operated a vehicle; (2) that the vehicle was operated in a yard at Newlands Road, Wamuran; (3) that Ms Coman operated the vehicle dangerously; (4) that Ms Coman thereby caused the death of Mr Crandley; and (5) that Ms Coman was adversely affected by alcohol.
[59] There was no issue at trial concerning (1), (2) or (5), and I am otherwise satisfied that those elements were proved beyond reasonable doubt. As to (5), the certificate of breath alcohol analysis tendered in evidence during the Crown case was conclusive evidence of Ms Coman's alcohol concentration when she drove over Mr Crandley's body and, further, conclusive evidence that she was adversely affected by alcohol at that time. But, whilst the fact that a person is adversely affected by alcohol is a circumstance relevant to the issue in (3) as to whether the person was operating a vehicle dangerously, it does not necessarily follow that he or she was doing so.
[60] As that, the expression "operates a vehicle dangerously" means "operates a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances" including:
- (a) the nature, condition and use of the place;
- (b) the nature and condition of the vehicle;
- (c) the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place;
- (d) the concentration of alcohol in the operator's blood; and
- (e) the presence of any other substance in the operator's body.
[61] The expression "operates a vehicle dangerously" does not require any particular state of mind on the part of the driver; a driver may believe he or she is driving carefully but, when viewed objectively, the driving was dangerous. The operation of a vehicle includes the speed at which the vehicle is driven and all matters connected with the management and control of the vehicle by the driver, such as keeping a lookout, turning, slowing down and stopping.
[62] The term, "dangerously" is to be given its ordinary meaning, that is, something that presents a real risk of injury or damage. The ordinary meaning of "dangerous" is "fraught with or causing danger; involving risk; perilous; hazardous; unsafe". It describes, when applied to driving, a manner or speed of driving which gives rise to a risk to the public, including other motorists, cyclists, pedestrians and the driver's own passengers.
[68] Ms Coman is not guilty of manslaughter and not guilty of the alternative count of dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance.
[69] For completeness, I record that whilst a person charged on indictment with dangerous operation of a vehicle with one or more circumstances of aggravation might in theory be found guilty of dangerous operation of a vehicle without the circumstances of aggravation if such an offence is established by the evidence, there is no room for such an outcome here. That is because I was not satisfied beyond reasonable doubt that Ms Coman operated her vehicle dangerously. Put another way, the verdicts on counts 1 and 2 conclude the case between the Crown and Ms Coman.
R
Coman [2020] QSC 60
(1990) 171 CLR 207
(1955) 92 CLR 654
(1993) 61 SASR 1
[18] Ms Coman and Mr Crandley had been in a relationship for just under two years and, in 2017, became engaged. Like the latter stages of Mr Crandley's previous relationships, his relationship with Ms Coman was marked by the frequent and excessive consumption of alcohol. There were probably any number of reasons for this, not the least of which were the financial pressures of running a small business as a plasterer, but heavy drinking was very much part of Mr Crandley's day-to-day existence. Ms Coman also had a chronic drinking problem for which she had been unsuccessfully treated with prescription medication for many years. Away from alcohol, and again like Mr Crandley's previous relationships, there was much to commend the pair but, under its influence, Mr Crandley was a different person. There were frequent outbursts of anger and aggression, emotional abuse, belittling accusations, vile language, intimidation and, on occasion, actual violence. To add to all of that, Mr Crandley must have been an imposing man. At the time of his death he was 190 centimetres in height and weighed approximately 122 kilograms. In contrast, Ms Coman is a diminutive woman, 151 centimetres in height. The photograph tendered in the defence case depicts them standing together on the occasion of her daughter's 21st birthday in July 2017; she did not come up to his shoulders. A neighbour, Mr Sherlock, described Ms Coman as "very timid" and "really tiny" compared to Mr Crandley whom he described as "quite a large man". That was an accurate description.
[19] Ms Coman drove a small car, a Hyundai i30 hatchback. It had an automatic transmission and was a front-wheel drive. It was subjected to a mechanical inspection after the incident. No defects were found that could have caused or contributed to the death of Mr Crandley.
[20] The incident which gave rise to Mr Crandley's death occurred on the evening of 28 July 2018 at approximately 7.00 pm. It was a Saturday.
[21] On the Friday evening, Mr Crandley and Ms Coman were at home together, and drinking. An argument developed about the preparation of dinner. Mr Crandley wanted to keep drinking; Ms Coman was hungry and wanted to eat. He became extremely angry but she chose not to antagonise him by "speaking back". They ended up watching a movie together for some time before Ms Coman went to bed without eating.
[22] On the next day, Mr Crandley left the home in the morning to assist with the by-election for the Federal seat of Longman and, while he was gone, Ms Coman attended to some housework. He arrived home in the afternoon and, within an hour or so, they were together again drinking. They sat around a small table outside the front door and watched the sun set. It was a pleasant conversation but, in time, Ms Coman grew anxious to feed the horses before nightfall. Mr Crandley asked her to wait a little longer before doing so. While waiting, she mentioned that members of her family were due to visit the next day (Sunday) and, with that, Mr Crandley became enraged. He was not fond of her family and felt put out. He started to loudly berate Ms Coman for arranging the visit and was visibly upset. Ms Coman decided to make herself scarce, so she walked down to the stables, made up feeds for the horses and fed them. Mr Crandley did not follow her. It was not long after 6.00 pm.
[23] Ms Coman returned to the house about 30 to 40 minutes later. She entered the kitchen, prepared bowls of food for their cats and dogs and put them out. While she was doing that, Mr Crandley was pacing back and forward between the living room and lounge room with a drink in his hand. He was still agitated. Ms Coman said something that irritated Mr Crandley. He started up again; screaming and swearing at her. He was standing in the kitchen and his face was very close to her face while he was doing this. Ms Coman felt cornered and, based on her past experiences with Mr Crandley, believed that she was in serious danger. She decided to leave the house as soon as an opportunity to do so arose. That came when Mr Crandley suddenly left the kitchen and re-commenced pacing back and forward between rooms. He continued "stomping [around] and abusing" Ms Coman as he did so.
[24] When Mr Crandley left the kitchen, Ms Coman quietly walked down a hallway to the laundry and, from there, left the house through a side door. Mr Crandley did not follow her. She took nothing with her; the keys to her car had been left in the ignition and her mobile telephone was on the table around which they had earlier been seated to watch the sun set, but Mr Crandley was on that side of the house.
[25] After leaving through the side door, Ms Coman walked to the shed where her car was parked, got in, started the engine but did not switch on the lights. She reversed out. When the car was facing away from the house, Ms Coman switched on the lights and slowly moved off before turning onto the grassed area to avoid driving over the gravel driveway and drainage grate. She feared that, if she did so, the resulting noise might be heard by Mr Crandley and alert him to what she was doing. Her intention was to drive to the Newlands Road end of the driveway and park under the trees that lined the driveway at that point. Once there, she hoped to sit in her car until she considered it safe to return, and hopefully after Mr Crandley had fallen asleep. She had done precisely the same thing about six weeks before after a similar episode. On that occasion, she waited at the end of the driveway for about an hour before returning to find Mr Crandley asleep in front of the television.
[26] If the house or shed had any external lighting, none of it was turned on. The only illumination over the grassed area came from the headlights of Ms Coman's car. It was otherwise a dark night. There had been a very heavy dew, and the grass was very slippery.
[27] After passing the point that was roughly level with where the drainage grate was situated to her right, Ms Coman started to turn back towards the driveway so that she could proceed through the gate. She was driving at a relatively slow speed. When giving evidence, she described what happened next:
[32] For completeness, I note that Mr Sherlock was at home with his family throughout all of this, but his house was closed up against the mid-winter cold; all of the windows and doors were shut and the fireplace was alight. When giving evidence, Mr Sherlock confirmed that he did not hear anything that evening but said that he did not go outside the house until the police later arrived. He could not hear anything from the neighbours when he was inside his house and it was "closed up".
[33] Ms Coman was asked by police to provide, and provided, a specimen of her breath through a handheld device. It returned a presumptive reading of 0.257%. She was subsequently conveyed to the Caboolture Police Station and, at 9.02 pm, her breath was analysed by an approved breath analysing instrument. That produced a reading of 0.241%.
[34] On autopsy, a quantity of femoral blood was extracted from Mr Crandley's body and, on subsequent analysis, was found to have a blood alcohol concentration of 0.109%.
[35] Dr Holme gave evidence as to the likely effect of these levels of intoxication. When the concentration of alcohol in a person's blood reaches 0.02%, the central nervous system will start to be affected with impairment of coordination, speech, judgment and reaction times. Unsurprisingly, as the level of intoxication increases, the impairment becomes more pronounced. At a level of 0.09%, vision, perception and comprehension will also be affected along with emotional instability and reduced sensory responses. At a level of 0.241%, the person would experience significant central nervous system deficits in terms of sensory response, visual acuity, reaction times and peripheral vision. Such a person might be expected to have difficulty speaking and their capacity to understand a question and provide a responsive answer could be substantially affected, as could their memory of relevant events. Tolerance to alcohol will moderate these effects to some extent, but the impact on a person's motor and sensory abilities will be less diminished by tolerance. A blood concentration of 0.109% is also significant. Coordination of limb movement could be impaired in a person with that level of intoxication as would his or her ability to perceive what was going on around them, including their judgment as to whether they needed to move out of harm's way.
[36] As I have already made clear, I accept the account Ms Coman gave in evidence as to what occurred. It was entirely consistent with the physical evidence found at the scene as well as the nature and extent of the injuries sustained by Mr Crandley.
[37] As to the physical evidence, the path which Ms Coman's car took was easy to discern from what was described as "rolling tyre marks" left on the dew-laden grass. At a point not far from the northern end of the shed, the vehicle turned onto the grassed area and proceeded in a relatively smooth arc for about 15 metres before straightening for a short distance and then turning back towards the driveway after passing the position where the drainage grate was situated over the driveway to the right. The tyre marks on the ground were revealing of the front wheels of the vehicle having turned slightly away to the left at what must have been the point of impact. The vehicle came to rest about five metres from the driveway.
[38] There was no evidence of any heavy acceleration or braking, although there was some evidence that the passenger side front tyre continued to rotate after the vehicle ceased to make any forward progress. This would indicate that the front wheels were still receiving power from the engine at that point in time, but not for long. There was also evidence of the tyres losing traction at around the same point but, as to that, one of the first responders noticed that the front driver's side wheel was off the ground because that quadrant of the car was resting on Mr Crandley's chest. There were no marks on the ground to indicate that Mr Crandley had been dragged by the vehicle.
[39] Although the path of travel was easily discerned, any footprints on the driveway side of the car which might have been left by Mr Crandley would have been obliterated by the foot traffic of police and emergency service officers in their attempts to tend to Mr Crandley and free him from underneath the car.
[40] There was no damage whatsoever to the vehicle. Had Mr Crandley been in an upright position at the point of impact, there would have been damage to the bumper bar, bonnet, windscreen or roof of the car, but there was none. Nor was there any damage to the undercarriage of the vehicle. Likewise, had Mr Crandley been upright at the point of impact, the injuries he sustained would most likely have been revealing of this but the findings on autopsy told an entirely different story.
[41] Dr Ma performed that autopsy. There were grease marks and dirt on the clothing which Mr Crandley was wearing at the time of his death - in particular, his trousers, shirt and jacket - that confirmed the path of travel of a wheel over part of his right leg, abdomen, chest and left shoulder. Linear indentations, bruising and abrasions, most of which presented as patterned injuries, mimicked the same path of travel. There was also some bruising to his right elbow and upper back. Mr Crandley had no significant head injuries or injuries to his face. Where the undercarriage of the vehicle came to rest on Mr Crandley's chest, there was a large linear indentation and similar, though irregularly shaped, pressure-type injuries to his abdomen. Mr Crandley's fifth to tenth ribs had fractured on both sides as well as his spine at the eighth and ninth thoracic levels. There were no injuries that might indicate an "obvious impact point" such as "being hit by a car". To the contrary, the marks on the clothing together with the injuries to Mr Crandley's right leg, abdomen, chest and left shoulder were "consistent with a single tyre track having run across his body" when he was on the ground and the injuries to his right elbow and upper back were suggestive of him having "fallen backwards onto his right side".
[53] There is, however, at least one other reason why count 1 cannot succeed. The Crown need to prove beyond reasonable doubt that Ms Coman's driving was a substantial or significant cause of Mr Crandley's death. I am by no means satisfied that it was.
[54] The real and effective cause of Mr Crandley's death was the decision he made to place himself in front of Ms Coman's moving car. He did that when he was intoxicated, although certainly not to the extent to which Ms Coman was affected. However, the expert evidence at trial was that, with his level of intoxication (0.109%), the coordination of his limb movements would have been impaired as would his ability to perceive what was going on around him, including his judgment as to whether he needed to move out of harm's way.
[55] On the other hand, Ms Coman was grossly intoxicated (0.241%) and, as she herself frankly conceded under cross-examination, her capacity to safely control her car would thereby have been impaired. But Ms Coman's intoxication has to have causal significance before it can bear upon proof of this count. The expert evidence in that regard was that her motor and sensory abilities, visual acuity, reaction times and peripheral vision would all have been affected. It may therefore be thought possible to infer that, had she not been so intoxicated, Ms Coman may have braked sooner or swerved earlier and, further, to infer that, had she done either or both of these things, Mr Crandley's death may have been avoided, but that would be wrong in principle. That is because there is no proper evidentiary basis to support either inference. For example, there is no evidence to the effect that a sober woman of Ms Coman's age and abilities could have braked any earlier or swerved any sooner than Ms Coman in fact did or, perhaps more to the point, if such a person could have braked earlier or swerved sooner, whether that would have made any difference to the outcome. To conclude otherwise on the evidence in this case would be to indulge in intuition, if not outright speculation. It follows that, I could not be satisfied beyond reasonable doubt that Ms Coman caused Mr Crandley's death, whether in a substantial or significant sense, or at all.
[63] In the end, there must be some feature of the driving which is identified not as a mere want of care, but which subjects others to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by a person who may, on occasions, drive with less than due care and attention. It must be proven that there was some serious breach of the proper conduct of the vehicle, so serious as to be in reality, and not just speculatively, potentially dangerous to others.
[64] The consequences of a driver's acts or omissions cannot add to the criminality of his or her driving. Expressed differently, the quality of being dangerous to the public does not depend on the consequences of that driving. As such, whilst the immediate outcome of driving may afford evidence from which the quality of the driving may be inferred, it is not the outcome which gives it that quality.
[65] Applying those principles to the facts as I have found them to be, I am not satisfied beyond reasonable doubt that Ms Coman operated her vehicle dangerously. She was moving at a relatively slow speed and there is no evidence that she was keeping other than a proper lookout. She did not change the direction of her car abruptly; she was part way through a relatively gentle arc. Ms Coman was not driving on a public road, and had no intention of doing so. Rather, she was driving in a private space where members of the public did not have access. On all previous occasions when she left the house to avoid Mr Crandley, he did not follow her. Furthermore, even if it might reasonably be expected that Mr Crandley would attempt to follow Ms Coman on this occasion, it cannot reasonably have been expected that he would place himself in front of her moving car.
[66] That only leaves Ms Coman's intoxication but, for the reasons I have already expressed (at [55]), the evidence falls well short of that which would be required to draw any rational inference about the causal effect of her intoxication on the quality of her driving.
[67] The observation just made applies with equal force to (4). I am not satisfied beyond reasonable doubt that Ms Coman's driving was a substantial or significant cause of, or contributor to, Mr Crandley's death.